Appellate Practice

En Banc Appeals Court Homes in on Nacchio Witness Exclusion

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The 10th U.S. Circuit Court of Appeals in Denver assembled en banc Thursday to decide whether disgraced Qwest CEO Joseph P. Nacchio should get a new trial in the insider-trading case against him.

Nacchio was convicted last year, but a three-panel appellate court ruled in March that he should get a new trial and a new judge.

The panel was critical of U.S. District Judge Edward Nottingham’s decision to exclude a key corporate finance expert for the defense and, the New York Times reports, the full 10th Circuit picked apart that decision.

The expert, Northwestern University’s Daniel Fischel, was expected to testify that Nacchio’s pattern of stock sales didn’t appear to rely on insider information. Nacchio has said he sold shares of the financially troubled telephone service provider because they were set to expire.

The Times notes that some of the judges seemed to believe that Nacchio’s lawyers should have done more to get Nottingham to change his mind about Fischel.

“Your whole framework is that the court had an obligation to do something, when it was you and Mr. Nacchio who had an obligation to get the witness to the stand,” Circuit Judge Jerome A. Holmes said to Nacchio’s appellate counsel, Maureen Mahoney.

Mahoney responded that the frantic nature of the trial didn’t allow time for a hearing. But the Times notes that Circuit Judge Mary Beck Briscoe followed that argument with this retort: “Ask for a continuance. He’s a frequent flier. He can come back.”

Other judges, however, appeared more sympathetic to Mahoney’s arguments and seemed to be of the mind that total exclusion was extreme.

“This suggests to me that the district judge has such a low opinion of economic expertise that he doesn’t think there should be such expertise at a trial like this,” Judge Michael W. McConnell is quoted saying.

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